Navy judge rules reenlistment next to Iraqi corpse was not a crime

A judge has dropped two of the charges against a Navy SEAL who is facing a high-profile war crimes prosecution.

Navy Capt. Aaron Rugh, the judge in the court martial of Chief Petty Officer Edward R. Gallagher, 39, stripped away two of the charges against the SEAL — one related to his reenlistment next to the body of a slain teenage ISIS fighter, and another related to him allegedly operating a drone over the corpse.

The other charges stand.

Gallagher is still charged with premeditated murder for allegedly stabbing to death a previously wounded teenage ISIS fighter and with aggravated assault for allegedly shooting at civilians during a 2017 deployment to Iraq.

The chief special warfare operator also still faces an allegation he posed for photos with the young fighter’s body, and charges he allegedly obstructed justice by attempting to discourage members of his platoon from reporting him and then allegedly retaliated against subordinates who did.

Colby Vokey, one of Gallagher’s attorneys, said in an email Monday that the ruling dismissing two charges exposes weaknesses in the government’s case.

“We are grateful that these two character-smearing accusations won’t be a part of the trial,” he said. “There has to be a limit on what kind of accusations can be brought against our warriors fighting ISIS in a combat zone.”

Brian O’Rourke, a Navy spokesman, said the ruling does not affect the rest of the case against Gallagher. As of Monday, the text of the ruling had not been released.

The judge’s ruling could have ramifications outside of just Gallagher’s case.

Gallagher’s platoon commander, Lt. Jacob Portier, also faces court martial for charges that he was aware of complaints against Gallagher but did not report them. Portier also has been charged with conduct unbecoming an officer for conducting Gallagher’s reenlistment ceremony.

Jeremiah Sullivan, Portier’s attorney, said he is confident the judge’s ruling will help his client’s case.

“I’ve been saying all along, it's not a crime to conduct a reenlistment ceremony on the battlefield,” Sullivan said.

Prosecutors charged Portier with making a false official statement, for telling his superiors that “there was nothing criminal (about the reenlistment), it was just in poor taste.”

Unlike Gallagher’s case, which is barreling toward a trial date of Feb. 19, Portier’s has been delayed while a judge considers whether a previous protective order prevented the defense from interviewing witnesses. Sullivan hopes to roll the case back to a hearing that would re-evaluate the charges against his client.